JAWAD HASSAN, J. This Constitutional Petition under Article 199 of the Islamic Republic of Pakistan, 1973 (the "Constitution") has been filed by the Petitioner seeking direction to be issued to the Respondents/District Accounts Officer, Chakwal, for preparing her Pension Papers sent to him vide Notification No. 1793/AC-II, dated 03.11.2021 and that the Amendment made in Section 12 of the Punjab Civil Servants Act, 1974 (Act VIII of 1974) in pursuance of Notification No. Legis:13-20/2002(P- I) dated 03.05.2021 (hereinafter to be called the Amendment Ordinance') later given shape of The Punjab Civil Servants (Amendment) Act, 2021 promulgated and enforced in the Punjab Gazette Notification dated 29.10.2021 be declared ultra vires to the Constitution.
2. Brief facts giving rise to this Petition are that the Petitioner with the date of birth 26.04.1973 joined government service on 02.09.1995; after completion of 25-years of her qualifying service for pension stood retired on 19.11.2021, vide Notification (Retirement Order) dated 24.08.2021; her Application for issuance/preparation of Pension Papers was forwarded on 04.09.2021 by the competent authority concerned to the. District Accounts Officer, vide Notification No. 1793/AC-H, dated 03.11.2021, which was returned undecided by the latter on the ground that since she had retired after completing 26 years 02 months and 17 days' service on attaining age of about 48 years six months, thus her Retirement Order was unlawful being in violation of Section 12 of the Punjab Civil Servants Act, 1974 (the "Act"), as Amendment made by the Punjab Civil Servants (Amendment) Ordinance, 2001 published in the Punjab Gazette, vide Notification No. 13-20/2002 (P- 1) dated 03.05.2021 and later on approved by the Punjab Provincial Assembly, as notified vide Notification No. PAP/Legis (119)/2021/2669 dated 29.10.2021, according, to which it is mandatory that voluntarily retirement is permissible on completion of 25- years of service or on attaining fifty-five years of age, whichever is occurred later.
3. It is contended by the learned counsel for the Petitioner that Petitioner on account of her domestic problems especially concerning her ten years old son, who is a 'Special Child' and there is none at home to look after him, opted to retire from service. The Government of the Punjab issued Notification No.Legs:13-20/2002 (P-1) dated 03.05.2021 whereby Punjab Civil Servants (Amendment)
Ordinance, 2021 was promulgated though the same had been extended from time to time till attaining its finality/maturity as an Act after approval by the Punjab Provincial Assembly. It is contended that said Amendment had not been communicated to anyone/Petitioner till 06.09.2021 due to which she could not had knowledge of its promulgation, therefore, her case does not fall within the ambit of this Amendment, as her Retirement Order (Notification) had been issued on 24.08.2021. while the Amendment had been notified on 29.10.2021. Further adds that even otherwise, it is violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. Seeking declaration of the. Amendment being null and void, prays for issuance of a direction to the District Accounts Officer for preparing the documents necessary for issuance of Pension and other benefits in favour of the Petitioner for which she is legally entitled to; as, per observations made in a similar matter (2022 PLC (C.S.) 1156 titled Muhammad Faheem Zafar v. Government of the Punjab and 3 others) learned Lahore High Court, Multan Bench, Multan, which reads as under:- "........when the retirement order is lawfully sanctioned and issued by the competent authority it becomes final and conclusive for all practical purposes subject to availing of LPR, if admissible. It means that the civil servant stood retired on the date of retirement order which would take effect after the completion of his duly sanctioned LER. The retirement, as such, becomes final and merely the retiring pension would start from the date mentioned in the retirement order after the availing of LPR. As such, the retirement must be reckoned and given effect from the date of retirement order in accordance with prevailing law on that date. Hence, the Amended Section 12 of the Act does not apply retrospectively to the case of the Petitioner since the retirement order of the Petitioner was issued prior to the date of promulgation of the Amended Section 12 of the Act".
On the other hand, the learned counsel emphasizes that putting in juxtaposition Petitioner's Retirement Order issued on 24.08.2021 with said Amendment dated 29.10.2021, it becomes crystal clear that there should be no obstacle before the District Accounts Officer, Chakwal in preparing her Pensionary documents because her Retirement Order had been issued well before promulgation of the Amendment.
4. Learned Law Officer states that through letter dated 03.01.2022, the Finance Department, Government of the Punjab has 'been clarified that all retirement orders issued before the date of coming into force of the Amended Section 12 of the Act, in derogation to the mandatory conditions of voluntary retirement stipulated therein with the date of retirement following the date of commencement of Amended Section 12 of the Act due to availing of LPR are unlawful and, as such, cannot be given effect. In order to cure the illegality, it has been recommended that such officers/officials shall have to rejoin their Administrative Departments in the light of Section 20 of the Punjab General Clauses Act, 1956. Adds that the intervening period shall be treated as leave of kind due. The provisions of the Act are to be read in conjunction with each other and cannot be taken in isolation. Hence, qualifying service of 25-years or attaining 55-years of age, whichever is later, is prerequisite for voluntary retirement. Further adds that Petitioner was retired on 19.11.2021 while the Amendment made in the Act had been enforced on 03.05.2021 prior to the retirement of the Petitioner Which will be enforceable upon her case and seeks dismissal of this Petition.
5. Heard. Record perused.
6. Mst. Naveeda Visa/Petitioner born on 26.04.1973; joined Government Service on 02.09.1995 and vide Notification dated 24.08.2021 stood retired as EST (BS-15) GGES, MC, Chakwal, w.e.f. 19.11.2021 after completing 25-years of qualifying service as per Service Certificate issued by the District Accounts Officer Chakwal under Rule 3.5 of the Punjab Civil Services Pension Rules. The Punjab Provincial Assembly vide Notification bearing No.PAP/Legis (119)/2021/2669 dated 29.10.2021 has notified an Amendment in Section 12 of the Act according to which voluntary retirement is subject to fulfillment of condition of 25-years of service or 55-years of age, whichever is later at the time of such kind of retirement. The Amendment of Section 12 of the Act VIII of 1974 reads as under:- In the Punjab Civil Servants Act, 1974 (VIII of 1974) in Section 12, in subsection (i) for clause (ii) the following shall be substituted:
(ii) where no direction is given under clause (i): a) On completion of sixtieth year of his age; b) Voluntarily on completion of twenty-five years of service or on attaining fifty-five years of age, whichever is later."
On examining the case of Petitioner in the light of the Amendment made in the Act ibid reveals that it was prerequisite for the Petitioner that she should be 55-years of age or should have minimum 25-years of service at her credit for issuance of Pension in her favour. This very issue, as pointed out by learned counsel for the Petitioner has already been decided by this Court (referred to above).
But the moot point to be noted and decided in Petitioner's case is whether her Retiring Order had been issued prior to promulgation of the Amendment or otherwise. The answer of this case is clear on perusal of the Notification issuing Retirement Order of the Petitioner i.e. on 24.08.2021 while firstly, the Ordinance was promulgated on 03.05.2021 and had been extended before its expiry period i.e. 90-days without any break till promulgation of Amendment Act on 29.10.2021. As far stance/excuse of the Petitioner regarding Promulgation of the Act on the one hand that Amendment's issuance had not been communicated to anyone/Petitioner is not justifiable by any stretch of imagination, as such a publication is made for the public as a whole but its communication to every private individual is not required, thus, this stance of the Petitioner is not acceptable. As for the dates of promulgation of Ordinance till its ripeness up-till the Provincial Assembly of Punjab is concerned there is no doubt that the Ordinance was firstly promulgated on 03.05.2021 and after having been extended before its expiry it had been approved by the Parliament for being enforced with effect from 29.10.2021. In this regard, I seek support from Adnan Afzal v. Capt. Sher Afzal (PLD 1969 Suprem e Court 187) whereby retrospectivity of legislation has been elucidated as, the general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect. Furthermore, in Muhammad Mansha v. Industrial Development Bank of Pakistan and others (2020 SCMR 1069) the scope of retrospective effect has been defined as that when the legislature through an enactment altered the rights of parties by taking away or conferring any right of action, such enactment did not affect pending actions, unless provided in express terms within the enactment.
General rule of common law was that the statute changing the law ought not (to affect past events), unless the intention appeared with reasonable certainty to be understood as applying to facts or events that had already occurred in such a way so as to confer or impose or otherwise effect rights or liabilities which the law had defined with references to past events. Furthermore, in case Muhammad Khalid Khan v. Inspector General of Prisons, Khyber Pakhtunkhwa and another (2021 MLD 232) the gist of observations made therein is that as the case FIR was registered against the Petitioner prior to the promulgation of the Amended Ordinance, thus, the promulgation of the Ordinance cannot be applied to the case of the Petitioner retrospectively but the law existed at the time of registration of FIR would certainly be applicable to the case of the Petitioner. In this scenario, it is clear that Retirement Order of the Petitioner has been issued on 24.08.2021 after promulgation of the Amended Ordinance having been accorded extension within time till Amended Act was promulgated before elapse of statutory time period.
7. In view of the discussion made above, this Writ Petition has no merits which is hereby dismissed.